that no action of slander will lie therefor: Folkard's Starkie on Slander and Libel, Wood's Notes, 262, sec. 201; Henderson v. Broomhead, 4 Hurl. & N. 569; Revis v. Smith, 18 Com. B. 126; Townshend on Libel and Slander, sec. 223. The rule in this country has, however, been qualified, and it is the purpose of this note to consider in brief the principal limitations thereto. It will be observed that the statement made by Townshend in his work on libel and slander, as to the law upon the point involved, is criticised somewhat freely in the principal case. In Hutchinson v. Lewis, 75 Ind. 55, 60, it is said, quoting from section 223 of Mr. Townshend's work, that “the due administration of justice requires that a witness should speak, according to his belief, the truth, the whole truth, and nothing but the truth, without regard to the consequences; and he should be encouraged to do this by the consciousness that, except for any willfully false statement, which is perjury, no matter that his testimony may be in fact untrue, or that loss ensues to another by reason of his testimony, no action for slander can be maintained against him.' This is a correct statement of the law upon this subject"; citing 1 Hilliard on Torts, 322; Cooley on Torts, 210; Nelson v. Robe, 6 Blackf. 204; Grove v. Brandenburg, 7 Id. 234; but the court qualifies the rule, however, by adding in effect that the words must be pertinent and material. Substantially the same qualification is made in Mower v. Watson, 11 Vt. 536, 34 Am. Dec. 704, where it is declared that witnesses are privileged, provided what is spoken be in the ordinary course of proceedings and bona fide; but the case of Calkins v. Sumner, 13 Wis. 193, 80 Am. Dec. 738, cited also in the principal case, holds that an action for slander will not lie against a witness, if what he said was pertinent and material to the issue, no matter how much he may be actuated by hatred or ill will. Another case where this question arose is that of Liles v. Gaster, 42 Ohio St. 631, 636. There the court says: "The general rule is, that language used in the ordinary course of judicial proceedings, whether by the judge, a party, jurors, or witnesses, is protected, if it be relevant to the matter under consideration, and the court has jurisdiction. The privilege accorded to a witness under such circumstances is founded on public policy. The due administration of justice requires that a witness should be perfectly free to speak according to his belief, without regard to consequences. He is sworn to tell the truth, the whole truth, and nothing but the truth concerning the matter in trial. While doing so in good faith he is absolutely privileged. . . . . 'We unhesitatingly recognize the fact that in many cases, however damaging it may be to individuals, there should and must be legal immunity for free speaking, and that justice and the cause of good government would suffer if it were otherwise. . . . What would be the condition of the witness, for instance, were he under the necessity of calculating when giving his testimony, not merely whether it satisfied his conscience, but also whether he could prove it to be true should he be sued in slander for giving it? It is beyond doubt that to subject him to such responsibility would at least detract largely from the reliability of evidence, and multiply the opportunities for operating upon the fears of witnesses, to the serious detriment of justice': Cooley on Torts, 211. . Malice in fact or express malice. . . . does not render the words of a witness who testifies in good faith, to matters deemed by the court wherein he is testifying to be admissible, actionable, even though the testimony be irrelative to the issue. If the witness in such case believe his statements to be true, though in fact they are false, malice in fact will not render him liable in damages." These words are certainly forceful, and imply a stronger leaning towards the English rule than is perhaps intended, judging from what is

....

subsequently added by the court; for it concludes as follows: "What his liability in this respect may be, if he was guilty of intentional falsehood and actual malice, we need not here determine, as the case does not require it. Neither does it require us to determine such liability if a witness disregard the obligations of his oath, and willfully and maliciously perverts the truth, and takes advantage of his position to utter false, malicious, and slanderous words. Whether in such cases a witness is liable only to an indictment for perjury, as many authorities hold, or may also be liable to a civil action, as others maintain, is a question not now before us": Id. 636, 637.

The tendency in Louisiana, as indicated by the case of Burke v. Ryan, 36 La. Ann. 951, is in the same direction as the decision in the principal case, since the Louisiana case thus declares the law of that state: "It needs no elaborate reference to authorities to establish the proposition of law that witnesses who appear in a court of justice discharge a public duty; that though they be liable to a prosecution for perjury should they commit such, they are not responsible in a civil action for any reflection thrown out in delivering their testimony, or for anything said or published by them in the course of a judicial proceeding, even if the statement be false, malicious, and without probable cause. There is put this qualification, however: that statements thus made in the course of an action must be pertinent and material to the issue "; citing Starkie on Slander, 242-254; Townshend on Libel and Slander, secs. 209, 223, 354, 355, and note; 2 Addison on Torts, sec. 1092, pp. 933-935; Odgers on Slander, 186-192. The case of McLaughlin v. Cowley, 127 Mass. 316, cited in the principal case, merely holds that the exception is as above stated, viz., that the answer to be privileged must be pertinent and material to the issue, and this case relies upon Rice v. Coolidge, 121 Id. 393, 395, where the court says: "It seems to be settled by the English authorities that judges, counsel, parties, and witnesses are absolutely exempted from liability to an action for defamatory words published in the course of judicial proceedings: Henderson v. Broomhead, 4 Hurl. & N. 569; Revis v. Smith, 18 Com. B. 126; Dawkins v. Rokely, L. R. 8 Q. B. 255, and cases cited, affirmed L. R. 7 H. L. 744; Seaman v. Netherclift, 1 C. P. D. 540. The same doctrine is generally held in the American courts, with the qualification as to parties, counsel, and witnesses, that in order to be privi leged, their statements made in the course of an action must be pertinent and material to the case: White v. Carroll, 42 N. Y. 161; 1 Am. Rep. 503; Smith v. Howard, 28 Iowa, 51; Barnes v. McCrate, 32 Me. 442; Kidder v. Parkhurst, 3 Allen, 393; Hoar v. Wood, 3 Met. 193. In the last-cited case, Chief Justice Shaw says: 'We take the rule to be well settled by the authorities that words spoken in the course of judicial proceedings, though they are such as to impute crime to another, and therefore if spoken elsewhere would import malice and be actionable in themselves, are not actionable if they are applicable and pertinent to the subject of inquiry.'. . . . The reasons why the testimony of witnesses is privileged are, that it is given upon compulsion, and not voluntarily, and that in order to promote thorough investigation in courts of justice, public policy requires that witnesses shall not be restrained by the fear of being vexed by actions at the instance of those who are dissatisfied with their testimony." The case of White v. Carroll, 42 N. Y. 161, 1 Am. Rep. 503, cited in the last case as supporting the doctrine there stated, only decides, however, that it is a question for the jury to determine whether answers given by a person in the course of his testimony as a witness, and claimed to be slanderous, were so given under the belief that they were pertinent and relevant to the question at issue or from malice.

A limitation of the rule that the statements must be pertinent and material is, that a witness is not answerable in damages for any statements he may make to questions put to him, and which are not objected to and ruled out by the court, or concerning the impertinency or propriety of which he receives no advice from the court or tribunal before which the proceeding is had; that is, if the alleged slanderous matter be irrelevant, yet if it is called out by questions put by counsel to the witness under the above circumstances, the witness is protected: Calkins v. Sumner, 13 Wis. 193; 80 Am. Dec. 738.

AS TO PRESUMPTIONS AND THE BURDEN OF PROOF IN SUCH CASES, the rule is, that a presumption attaches that the words spoken by a witness on the stand are pertinent and material: Hutchinson v. Lewis, 75 Ind. 55, 60; Liles v. Gaster, 42 Ohio St. 631; and also that they were fairly called out by the examination: Liles v. Gaster, Id. It is also declared that words spoken in judicial proceedings, though actionable per se, are prima facie privileged, and that it is incumbent upon the party alleging that they are slanderous to overcome the presumption in favor of the witness, and to aver and show that they were not pertinent or material, and that the speaker was animated by ill will and hatred, and took advantage of the privilege accorded him in law as such witness; malice in fact must be averred and proved. Courts will to this extent protect the witness, even in cases where such actions are favored: Calkins v. Sumner, 13 Wis. 193; 80 Am. Dec. 738; Liles v. Gaster, 42 Ohio St. 631.

SULZBACHER BROTHERS V. BANK OF CHARLESTON.

[86 TENNESSEE, 201.]

PROTESTING FOREIGN BILL OF EXCHANGE - EVIDENCE. - If a notary presents such bill for payment in business hours, at the usual place of business of acceptor, and finds it closed, no explanation being furnished as to why it is closed, he may protest the bill for non-payment, except in case of permanent abandonment and removal to another place of busi It is not incumbent upon him, in such case, to call at the acceptor's residence, and the notary's certificate embodying a statement of such facts is sufficient.

ness.

NOTARY'S PROTEST OF FOREIGN BILL OF EXCHANGE PRESENTED FOR PAYMENT IS NOT CONCLUSIVE, but only evidence of such facts as are proper to be stated in it; it may always be rebuited by other evidence showing how the demand was made, or that proper diligence was not used to make it, or that there was a permanent abandonment and removal to another place of business in the same city.

BILL OF EXCHANGE. - SAME DEGREE OF DILIGENCE DOES NOT ALWAYS DEVOLVE UPON NOTARY in case of presentment for payment as in case of presentment for acceptance.

N. D. Malone, for the plaintiffs.

Colyar, Marks, and Childress, for the defendant.

FOLKES, J. This is a suit brought in the circuit court of Davidson County by the bank, as the holders for value, in due course of trade, of a draft or bill of exchange drawn by

the plaintiffs in error, at Nashville, on December 2, 1882, for $892.95, payable thirty days after date to the order of the drawers, addressed to Keller and Rushing, Charleston, South Carolina, indorsed by Sulzbacher Brothers, and accepted by Keller and Rushing.

The draft was drawn to cover the amount of a bill of goods sold by the drawers to the acceptors, and was by the bank discounted for the benefit of the drawers. The paper, not being paid at maturity, was protested.

The question which we are to consider is as to the sufficiency of the notarial certificate with reference to the demand for payment. The following is a copy of so much of the certificate as is necessary to be noticed:

"I, Haywood Thayer, notary public, . . . . exhibited the original draft . . . . at the place of business of Keller and Rushing, the acceptors, and demanded payment of the same, but found it closed, and no one there to respond to demand, which was thereby refused; whereupon I made out notice," etc.

The contention on behalf of the plaintiff in error is, that it was necessary for the notary, upon finding the place of business of the acceptors closed, to have gone to their residence, or to have made further inquiry and effort to find them. Failure to do this, it is insisted, discharged the drawers.

Can this contention be sustained? We think not. Being a foreign bill of exchange, the protest must show upon its face all the facts necessary by the law merchant to charge the drawer and indorsers. And while the protest is not conclusive, but only evidence of such facts as are proper to be stated in it, it may always be rebutted by other evidence showing how the demand was made, or that proper diligence was not used to make it.

With the protest before us, and the presumption that the notary, as a public officer, has done his duty on the one hand, and from the proof offered in rebuttal on the other, the inquiry always is, Has due diligence been used by the notary, under all the circumstances, to find the party and make the demand?

Let us apply this test to the facts of this case. The language of the certificate we have already seen. The only proof in the record which it is contended tends to rebut the presumption in favor of the sufficiency of the notarial act is, that the acceptors had "suspended," and "had made a second

mortgage," shortly before the maturity of the bill; from which it is argued that their place of business had been abandoned, and that, if the officer was not required ordinarily to go to the residence when the place of business is temporarily closed, or the parties absent, he would have to do so when the parties had ceased to have any place of business.

In the first place, it is proper to reply that the proof does not show that the acceptors had ceased to have and use a place of business. There is nothing to show the character, nature, or extent of their suspension. The only witness who speaks on this subject is a bank officer, who says they had "suspended"; that the bank had appropriated a small balance to their credit on deposit to the payment in part of a debt due by them to the bank; and that they had made a second mortgage to secure an indorser on a note held by the bank, under which property embraced therein was sold, and proceeds applied to the payment of the note.

All of this may be perfectly consistent with the retention by them of their old place of business, either for the continuation of business or in winding up their old business. Indeed, the term "suspended," in the connection in which it is used, would ordinarily mean a suspension of payment, an embarrassed financial condition, but not necessarily a cessation of business, and a removal from the old stand.

Had the facts been as now assumed in the argument on behalf of the drawers, it would have been a very easy matter for them to have made the proof, the accessibility and admissibility of which is unquestioned.

We are of opinion that if a party has closed in the sense of an abandonment of his place of business at the maturity of the paper, but has a residence or other place of business in the city which could be ascertained by reasonable inquiry, a presentment at the former place of business would not be sufficient.

But unless it is shown that he has abandoned or permanently closed it, it is his duty to keep some one there to answer business demands during business hours; and the statement of the notary's certificate that he called at the place of business of the acceptor to make demand is sufficient; and the presumption is, that the demand was made in business hours: Baumgardner v. Reeves, 35 Pa. St. 250; Wiseman v. Chiapella, 23 How. 368.

In this latter case there is a very full and instructive dis